ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 1-540/13
DATE: 20140923

BETWEEN:

HER MAJESTY THE QUEEN

– and –

J.K.

Defendant

Cara Sweeny, for the Crown

Jacob Jesin, for the Defendant

HEARD: March 3, 4, 5, 6, 7, 26, and April 9, 2014

MOLLOY J.:

REASONS FOR DECISION

A. INTRODUCTION

[1] On the morning of October 30, 2011, a young woman (J.B.) woke up in her bed alone. She was naked. She remembered having dinner and drinks at a pub with a work colleague the evening before, but nothing after that. She felt some discomfort in her vaginal area and thought she must have had sexual intercourse, but she had no memory of it. Ultimately, she concluded that she must have been drugged. Months later, she went to the police and charges were laid against her co-worker, J.K.

[2] J.K. is charged with two counts related to this incident. Under Count 1, Mr. K is charged with sexually assaulting J.B. and under Count 2 with administering to J.B. a stupefying drug with the intention of having illicit sex with her. He elected to be tried by a judge without a jury and pleaded not guilty to both counts.

[3] At the outset of trial I issued a publication ban, prohibiting the disclosure of any information that would identify the complainant. The accused and J.B. work in a small industry. In this context, public disclosure of the name of the accused could easily result in the identification of J.B. as well. I have therefore referred to the accused throughout these reasons by the initials J.K.

[4] It is clear from the evidence that J.B. and J.K. did engage in sexual intercourse in J.B.’s apartment that night. I found J.B. to be a credible witness who firmly and genuinely believes that she was drugged by J.K. and otherwise would never have had sex with him. Given the passage of time and the rapidity at which such drugs leave a person’s system, there is no empirical way to prove the drug was present. J.K. testified in his own defence. He maintained that the sex was consensual. In the course of his evidence, he produced text messages sent to him by J.B. the morning after the sexual encounter that were still on his phone. Those messages, the defence argued, were inconsistent with the complainant’s position that the sex was not consensual.

[5] In the course of final argument, the Crown urged me to conclude that the messages from J.B. on Mr. K’s phone were fake. When I advised that I could not make such a finding in the absence of evidence supporting it, the Crown sought an adjournment for the purpose of calling evidence on the point. The accused consented and voluntarily turned over his phone for testing. Ultimately, the messages were determined to be genuine.

[6] The doctrine of reasonable doubt is a cornerstone of our judicial system. Because of her lack of memory, Ms. B is only able to testify to what she believes to be the truth about what happened. What she believes in her heart to be true does not reach the legal standard of proof beyond a reasonable doubt. In the face of Mr. K’s testimony and the text messages sent by Ms. B, I cannot be satisfied beyond a reasonable doubt as to his guilt. Accordingly, for the reasons that follow, I am acquitting Mr. K on both counts.

B. THE ISSUES

[7] Many of the underlying facts are not in dispute. J.B. and J.K. worked for the same employer and on the same project, but in different departments. They became acquainted with each other at their workplace in the summer of 2011. In October 2011, Mr. K suggested that they go out for dinner and Ms. B agreed. They went to a pub-style restaurant known as Mitzi’s Sister, which was near her apartment. At Ms. B’s suggestion, Mr. K met her on the street outside her apartment at 7:00 p.m. on the evening of Saturday, October 29, and they walked together to Mitzi’s. They had a meal and drank beer at Mitzi’s.

[8] Later that night, or in the early hours of October 30, they returned to Ms. B’s apartment. They had sexual intercourse in Ms. B’s bed. Mr. K left while Ms. B was still asleep. In the morning when she woke up, Ms. B texted Mr. K, and there was then an exchange of text messages between them.

[9] There are two central issues in dispute: (1) whether the sex was consensual; and (2) whether Mr. K slipped some kind of drug into Ms. B’s drink to facilitate having sex with her later.

C. THE EVIDENCE: What she said and what he said

Arrangements for the October 29th Saturday Evening Out

[10] In October 2011, J.B. was 27 years old and single.[^1] J.K. was 46 years old, divorced, and the father of two teenage daughters who lived with him 50% of the time.

[11] J.B. testified that a mutual friend at work (“R”) had offered to set her up on a date with J.K. and that she told R she was not interested. She said that not long afterwards, Mr. K asked her if she wanted to get together sometime outside work and she agreed to have dinner with him, but she told him this was only as friends. On cross-examination, she acknowledged that Mr. K actually asked her out for dinner, and that she agreed to go on the first weekend the two of them had available, which was October 29. She also acknowledged that in agreeing to see Mr. K outside work, she was relying on R who told her he was a nice guy. However, she maintained throughout her testimony that this was not a date.

[12] J.K. testified that R came to him at work on a Monday and suggested to him that he ask J.B. out. He protested that he was quite a bit older than J.B. and R told him that J.B. did not mind that. He said he took from that conversation that R was trying to set him up with Ms. B, that she had discussed it with Ms. B, and that Ms. B was agreeable. He chatted with Ms. B each day that week at work and found her to be friendly. On Wednesday, R asked him how things were going with J.B. and also told him that somebody else at work was also going to ask her out. Therefore, on Thursday, Mr. K asked Ms. B if she would like to go out sometime. He said she accepted without hesitation. He suggested the coming Saturday, but she was working, and they then agreed on the following Saturday, October 29. He testified that Ms. B never said this was not a date and that he considered it to be a date.

[13] Ms. B testified in cross-examination at trial that it was not clear to her whether there would only be the two of them going to the restaurant that night. She acknowledged that Mr. K did not mention anyone else, but denied that she assumed there would only be the two of them. She was then confronted with her contradictory answer to the same question at the preliminary hearing. On that occasion, when asked if she assumed it would be just the two of them, she replied “I did.” Her explanation at trial for this inconsistency was that she did not think she ever thought about it.

[14] Both principal witnesses agree that the plan was for Mr. K to meet Ms. B on the street outside her apartment building at 7:00 p.m. on the Saturday night, and that he did so. The pub-style restaurant they went to was called Mitzi’s Sister and it was just two blocks from Ms. B’s apartment. Mr. K said that he left it up to Ms. B to choose the restaurant and did not know where they were going until he arrived to pick her up. At trial, Ms. B testified that she could not remember if she was the one who chose the restaurant. Although she was taken to her evidence at the preliminary hearing, at which time she said that she was the one who suggested the restaurant, she maintained that this did not refresh her memory. She did, however, acknowledge that she had been to that restaurant before and liked the food.

What Happened at the Restaurant

[15] Ms. B had very little recollection of anything that happened at the restaurant. She could not remember where they sat, whether there was live music, or whether they sat throughout at the same table. She believed she ordered food and at least two pints of beer. She believed that she would not have ordered drinks for herself unless Mr. K was also drinking. However, she could not remember what food she ordered or the kind of beer she drank and she could not remember whether Mr. K had any food. She could not remember anything at all after the second beer, including what time they left and who picked up the tab.

[16] Mr. K had a very detailed memory of the evening. He testified that they were seated in a booth near the front. However, he said there was a live band and they later moved to a table further away because of the noise. He said that Ms. B ordered fish and chips and finished her meal. He ordered a Reuben sandwich and sweet potato fries. He did not like the sandwich and did not eat it. He said that when the waitress noticed he had not eaten it and asked him about it, she took the sandwich off the bill. Mr. K testified that he was drinking Neustadt beer and that Ms. B had been drinking Nightmarzen. He said that when last round was called, they each ordered another beer, even though they had not finished the drinks they already had. He also said that neither of them actually drank the last beer. Mr. K further testified that he picked up the whole tab and paid for it on his credit card.

[17] The defence called as a witness John Oakes, the owner of the pub. He produced the restaurant’s records for that evening, which showed that Mr. K had in fact paid the entire tab. The bill showed that service commenced at 7:24 p.m. and the tab was closed off at 2:35 a.m. The bill was for one order of fish and chips, ten Neustadt beer and six Nightmarzen beer. Mr. Oakes explained that the Nightmarzen was a novelty item brought in for Hallowe’en. He said last call would have been at 2:00 a.m. and everything is cleared from the tables at 2:45 a.m. The table shown on the bill accords with Mr. K’s evidence as to the table where they sat at the beginning of the evening when the tab started to run. Indeed, Mr. K’s evidence is fully consistent with the restaurant’s records. It must be acknowledged, however, that this was a defence witness and Mr. K would have had access to these records before he testified.

[18] That said, Mr. K also had an astonishingly good recall of other details of the evening, including what was discussed between them. According to Ms. B, they had light conversation about mutual interests, the industry in which they both worked, and Mr. K’s prior experience in archaeology. She said it was the kind of conversation that one would expect between co-workers. She testified, however, that at some point, Mr. K said she would be a good mother. She reported feeling uncomfortable with that remark and considered it inappropriate. When it was suggested to Ms. B in cross-examination that the comment about motherhood did not make her want to end the evening, she said that she did not have a strong memory of it either way. She was then taken to her testimony at the preliminary hearing when the same suggestion was made to her and she had agreed that this was correct. At trial, Ms. B said that the preliminary hearing transcript did not refresh her memory on this point.

[19] Mr. K testified to conversation between them that was much more personal, and indeed intimate. Some of these involved details about Ms. B that he could not have known unless she told him. Mr. K testified that Ms. B told him she had gone through a “fake marriage” for immigration purposes to help a friend. He also recalled Ms. B talking about her brother who had turned his life around upon having a child. He said she told him how much she enjoyed holding her nephew. According to Mr. K it was at this point that he asked Ms. B if she ever thought about having children of her own someday. To this, Ms. B responded that she could not have children. She had gone through two bouts of cervical cancer and each time had portions of her cervix removed. She told him that she could conceive, but would not be able to carry a baby to term. According to Mr. K it was in this context that he made the remark that this was too bad as he thought she would have made a good mother. Ms. B testified that she could not remember any discussion about her marriage, her brother, her nephew or her cervical cancer.

[20] Mr. K testified that on two occasions, Ms. B left the table to go to the washroom. He said that both times he went outside to have a cigarette. He testified that Ms. B was not pleased that he had been smoking and drew a little cartoon with an adverse comment about it on a napkin while he was gone. Ms. B had no memory of this at all.

[21] According to Mr. K, he drank nine pints of beer at the pub over the course of the five hours they were there. He said he has a high tolerance for alcohol and was not intoxicated. He said that Ms. B had five pints of beer over that same period of time and that she did not appear to him to be intoxicated either. Ms. B testified that she had at least two pints of beer, possibly more. However, she could not remember anything after the second beer. She does not believe she could have consumed five pints of beer, based on the way she felt the next morning. She said that after four pints of beer, she would have been throwing up and would have been very hungover the next day, neither of which occurred. She denied ever having blackouts before as a result of alcohol consumption.

What Happened After the Restaurant

[22] It is common ground that Mr. K walked with Ms. B back to her apartment and that they had sexual intercourse in her bed. Ms. B testified that she has no recollection of leaving the restaurant or walking to her apartment. With respect to what happened after leaving the restaurant, she had one flash of memory in which she was standing at the outside security door into her apartment building. She recalled Mr. K was with her and that she was having trouble getting her key to work. This was one disconnected moment and she had no memory of what happened before it or after it.

[23] In addition, Ms. B testified at trial that she had another flash of memory in which she was lying on something soft and fluffy, which felt like her bed. It was dark and she could not see anything, but she could hear Mr. K’s voice above her asking why she was crying and her saying it was because he was hurting her. At trial, Ms. B agreed that this recovered memory was “vague,” “disconnected,” and “very brief,” lasting only a few seconds. She could not remember anything before it or after it. She had no memory of what Mr. K was doing or how he was hurting her. She did not know what he was wearing. Indeed, she testified that this was an auditory memory only and that she had no visual to go with it, although she could not say if this was because it was dark or because her eyes were closed.

[24] Ms. B first reported the alleged assault to the police on January 29, 2012. She gave a formal video-taped statement at that time, but she told the police that she did not want to proceed with criminal charges against Mr. K. In mid-May 2012, Ms. B changed her mind and told the police she did want to press charges against Mr. K. He was thereupon arrested and charged. The preliminary hearing was scheduled for March 2013, but later adjourned to May 2013.

[25] In her initial police interview, Ms. B described her flash of memory at the door of her apartment building, but she did not tell them anything about the later memory of Mr. K asking her why she was crying. The first time she reported that memory was in March 2013.

[26] It is not clear when this recovered memory first arose in Ms. B’s mind. In early March 2013, not long after meeting with the Crown to start preparations for the preliminary hearing, Ms. B advised the police that she had recovered one more fleeting memory from that night. On March 14, 2013, Ms. B sent an email to the officer in charge of the investigation setting out the additional matter that she now recalled. Under cross-examination at trial, Ms. B testified that she sent the email on the same day as she actually recovered the memory. She further testified that she had gone to the police station a few days earlier to review her video statement and had been asked if she remembered anything else. She said that she had not at that point recovered the memory of this moment on the bed. However, in her email to the officer on March 14, 2013, Ms. B told him that “remembered something else and forgot to tell [him]” the night she came to the station. On cross-examination, Ms. B agreed that the necessary inference from the language of the email was that she had remembered this moment before she went to the police station. She said the email was probably more accurate than her current memory on this point, and that she is now unable to say when she actually recovered this memory for the first time.

[27] Mr. K testified that the walk from the restaurant was about 20 minutes and that they first walked closely to each other and then linked arms. He said they were both feeling the alcohol a bit, but that neither of them was drunk. He said they talked all the way to the apartment and that Ms. B was walking in her normal fashion. He could not recall anything unusual in the way Ms. B unlocked her apartment door. He asked if he could use her washroom and she agreed. He said his intention was to take a cab home after using the washroom.

[28] However, according to Mr. K, when he opened the door from the washroom, Ms. B was leaning against the door frame wearing nothing but her bra and panties. He said she kissed him, he responded, and that she then led him down the hall to her bedroom. He testified that over the course of the next half an hour or so, he and Ms. B engaged in oral, vaginal and anal sex, all of which was consensual. Indeed, he described Ms. B as initiating a number of the specific sexual acts. At one point, Ms. B told him that she had not had an orgasm until she was 23, which he interpreted as indicating that she had difficulty reaching orgasm. He asked her if she had any sex toys and she said she had two dildos which she offered to go and get. However, upon hearing that one of the dildos had been used on her former boyfriend, Mr. K became uncomfortable and told her not to bother. Eventually, Mr. K claimed he was tired, explaining that Ms. B was 20 years younger than him and that he had trouble keeping up with her. He suggested that they go to sleep, which they did, in the spooning position.

[29] Mr. K denied that there was any occasion where Ms. B expressed any pain or discomfort or was crying.

[30] Mr. K testified that he did not notice where Ms. B’s clothing ended up. He said he unhooked her bra when they were in bed and that she removed it herself. He said he also removed her panties while they were in bed, with Ms. B lifting her hips to facilitate this. According to Ms. B, when she woke up the next morning, her panties were tangled up between the sheets, her bra and jeans were on the floor beside the bed, and her shirt was behind the nearby couch.

[31] Ms. B acknowledged in cross-examination that she did have a dildo in her apartment and that she kept it in a hidden location. She was not asked if she had more than one dildo.[^2]

The Morning After

[32] Mr. K testified that he woke up at about 7:30 in the morning. A friend had been staying with his children, but he had not told them he would be out all night. He wanted to get home before his children were up. He said that Ms. B was sleeping soundly and he did not want to disturb her, so he left without saying anything to her, explaining that he was unsure of the appropriate “etiquette” in these situations.

[33] Ms. B testified that when she woke up on Sunday morning she was alone in her bed and naked. She said this was unusual because she never sleeps in the nude. She could not remember anything that happened after being in the restaurant. She described herself as being extremely anxious, confused, and panicky. Her heart rate was high and she was shaking. She said that it felt like an anxiety attack, which she had experienced in the past.

[34] Ms. B said that the muscles of her inner thighs were hurting and her vagina was sore. She felt that she must have had rough sex, but could not remember it. She denied having an alcohol hangover, which she said, for her, was characterized by nausea, dehydration and a headache, none of which were present that day.

[35] Ms. B testified that when she woke up she sent a text message to Mr. K asking him what happened and that he replied, “I’m sorry. I had to leave.” She said that this was the end of the texting conversation and that it left her even more confused. She did not know what time she woke up, but said it was in the late morning, before noon. The first text she sent to Mr. K from her phone was at 10:47 a.m., which fits with that timeline.

[36] After texting Mr. K, she had a shower and got dressed. She then contacted another man, a co-worker with whom she had previously arranged to spend the day on Sunday. This was to be their first date. They spent the afternoon together, and later she made dinner for him and they watched a movie. Subsequently, she developed a relationship with this man, which included the two of them vacationing in Europe, returning in mid-April of 2012. That relationship ended in August 2012.

[37] In her examination in chief at trial, Ms. B said that her symptoms on Sunday morning lasted for a few hours. On cross-examination, she initially denied that the pain and soreness in her vagina and thighs lasted a few days, again stating that it was only a few hours. She was then confronted with her testimony at the preliminary hearing. On that occasion, she was asked how long the soreness in her legs and genitalia lasted and she responded, “A couple of days.” Ms. B explained this discrepancy by saying that the pain she woke up with lasted only a few hours, but there was still lingering pain to a small degree for several days. She did not seek medical attention, did not take a morning after pill, and did not get tested for sexually transmitted diseases.

[38] The only text messages Ms. B could recall was her asking Mr. K what happened and him saying he had to leave. She acknowledged that there could have been other text messages but denied that she ever would have said that she had a good night, or that it was not his fault, nor would she have told him to have a good day. However, it is now clear that she in fact said all of these things in her text messages to Mr. K that Sunday morning. These messages were produced for the first time in the course of the cross-examination of Ms. B by defence counsel. The Crown initially took the position that the messages were fabricated. However, subsequent examination of Mr. K’s phone has confirmed their authenticity.

[39] The first message was from Ms. B at 10:47 a.m. and consisted simply of a slang expression from their industry checking up on how he was. He replied immediately, “Good check. Sorry, had to get home to my children. You’re amazing.”

[40] The next text from Ms. B was at 10:54 a.m. This would appear to be the one message of which she has some memory, although it goes considerably further than she recalls. She wrote:

Wtf [what the fuck] happened? I just woke up w[ith] a slight hangover and a fuzzy memory of the night. That’s totally not me. I do recall having a really good time w[ith] you though.

[41] To this, Mr. K replied:

A good time was had. I wish I didn’t have to leave. Hopefully again.

[42] There was then an exchange of short messages, as follows:

JB: I hope you understand, I’m going to be horrifically embarrassed and awkward around you at work tomorrow, which is absolutely no fault of yours. Next time 0% alcohol ….

JK: No reason for any embarrassment. Agree to no alcohol….

JB: Lol [laughing out loud], thanks. I hate not being me.

JK: You were you. See you tomorrow…

JB: Have a good Sunday

Back at Work the Following Week

[43] Both Mr. K and Ms. B were back at work on the Monday morning. Ms. B testified that she is subject to migraine headaches and that she had a terrible one that morning. She testified that when she first saw Mr. K that morning he asked her if she was okay and she replied, “No.” He then followed her to her work station and again asked if she was okay. According to Ms. B she told him, “I don’t know what you think that was, but it was not what I wanted.” He responded, “I’m sorry. I really like you.” She also recalled that he said, “I thought that was what you wanted,” which she interpreted as meaning that she wanted to have sex with him. She told him to leave, and he did. She said that after that encounter on the Monday she had nothing to do with Mr. K except when their paths crossed at work. She denied that there was ever any friendly conversation between them.

[44] Mr. K has a very different recollection of that interaction. He testified that when he saw Ms. B on Monday morning she seemed distant, she was ashen, her pupils were tiny, and she looked like she was in horrible pain. Because her response to him had been minimal, he texted her to say he would like to see her again. The text messages on his phone corroborate that, as follows:

JK (7:26 a.m.): We okay? I’d like to see you again.

JB (7:29 a.m.): Don’t worry. I feel like a pile of shit. Never had a migraine this bad, it’s kinda all I can think about.

[45] Mr. K further testified that he followed up on this by going to Ms. B at work on the Tuesday morning, telling her that he had a good time, and saying he would like to see her again. He was surprised by Ms. B’s response. He said that Ms. B told him that she had a nice time and he was a fascinating guy, but that she did not want to go out with him again, although they could still be friends. He replied that he was sorry and that he thought “that was what she wanted,” meaning he thought she wanted to go out again. According to Mr. K, he did not press the matter further and he and Ms. B continued to have a friendly relationship at work. He cited a couple of incidents of playful, friendly encounters with Ms. B at work.

D. THE TOXICOLOGY EVIDENCE

[46] I heard opinion evidence on toxicology and pharmacology from two experts: Dr. Karen Woodall and Dr. David Rosenbloom. There is no real conflict in the expert testimony, nor is there anything particularly contentious. The problem with the expert evidence is that it is inconclusive. By the time Ms. B reported this matter to the police, any drug she might have been administered had been out of her system for months. However, with many of the so-called “date rape” drugs, even if she had gone to the hospital the very next morning, there is a good chance that nothing would have been detected.

[47] The symptoms that Ms. B reported on the Sunday morning and her loss of memory are consistent with some drugs that could have been administered to her. However, that is the most that can be said.

[48] It can also be said that those symptoms could be consistent with alcohol consumption in the amounts shown by the Mitzi’s Sisters receipt. On the expert evidence before me, it is possible that Ms. B could have consumed that amount of alcohol and appeared functional and rational and fully capable of consenting or not consenting to sex, but still be so impaired that her ability to store memory and to recall events after the fact was dramatically affected. It is also possible that with the effects of the alcohol she was less inhibited to engage in sex, and even risky sex or sex with a person to whom she would not normally be attracted.

[49] The expert evidence provides some support for the Crown theory, but there is also support for the defence theory. The expert evidence cannot rule out either scenario. Either scenario is possible; neither scenario is impossible. Accordingly, I find the expert evidence to be of little assistance in reaching my conclusion in this case.

D. LEGAL PRINCIPLES

[50] Given the lack of conclusive expert evidence for either scenario, this is essentially a “he said/she said” kind of case. This imposes a difficult burden on the Crown to prove its case beyond a reasonable doubt based on the testimony of a complainant who has no memory of the event in issue. While I recognize the practical difficulties in ever proving a case of this type, this does not change the legal standard I must apply. The burden remains on the Crown.

[51] Further, I must not compare the competing versions of the facts and decide which I find to be more credible or more probable. To do so would be to improperly shift the onus.[^3]

[52] The Supreme Court of Canada has suggested that in approaching a case of this nature, the trial judge should proceed in the following three-step manner:[^4]

1. Consider the testimony of the accused. If it is believed, it is a complete defence and he must be found not guilty.

2. Even if the evidence of the accused is not believed, if it raises a reasonable doubt as to his guilt, then he must be found not guilty.

3. Even if a reasonable doubt is not raised by the evidence of the accused, the evidence as a whole must be considered and a determination made as to whether the Crown has proven its case beyond a reasonable doubt.

[53] Although the three steps in W.D. provide a useful approach in cases of this nature, it is not a mandatory process, provided that the burden of proof is clearly placed on the Crown.[^5] In particular, there is no obligation on the trial judge to start with the evidence of the accused. It is permissible to consider the evidence in any order as long as the burden is never placed on the accused to prove anything and as long as the reasonable doubt standard is applied.

E. ANALYSIS

Overview

[54] In my analysis of this case, I have not found it useful to start with the evidence of the accused. Mr. K was in many ways a compelling witness. He was not caught in any obvious mis-truths. He demonstrated a good memory and attention to detail. Much of his evidence was corroborated by other evidence, such as the text messages on his phone and the testimony of the restaurant owner. However, I found Mr. K to be a difficult witness to read and I am not inclined to wade into whether I did or did not believe his account of how his sexual encounter with Ms. B unfolded. Making such a credibility finding is not determinative given my difficulties with Ms. B’s evidence, and I therefore have not done so.

[55] Fundamentally, this case must stand or fall on whether I am satisfied beyond a reasonable doubt that Ms. B did not consent to having sex with Mr. K. On the whole of the evidence, the testimony of Ms. B is simply not sufficient to discharge the onus on the Crown to prove this case beyond a reasonable doubt.

Credibility

[56] In assessing Ms. B’s evidence, I must address both its credibility and reliability. Of the two, reliability is the more significant problem. For the most part, I believe that Ms. B was attempting to tell the truth, as she knew it, about what happened between her and Mr. K. However, that is not to say that there is no issue at all with respect to credibility.

[57] Mr. K testified that one of the things Ms. B told him about herself is that she had undergone a “fake marriage” for immigration purposes. Ms. B claimed to have no memory of having told Mr. K about this. However, in March 2013, prior to the preliminary hearing, she sent an email to the police officer in charge of the case advising him of the possibility that the defence might try to discredit her because she had “married someone with citizenship as the motivation.” She was unaware at the time that this email would be disclosed to the defence.

[58] In cross-examination at the trial before me, Ms. B acknowledged that she had married a Serbian refugee claimant in 2008, after his refugee status had been revoked. She was asked if her motivation in marrying him was to assist in his citizenship claim, and she answered that she married him because she loved him. She was then taken to her email in which she said that citizenship was the motivation. She responded that citizenship was not the only motivation and that she did love him, but agreed that she would not have married him if his refugee status had not been revoked. Defence counsel then asked her if she lived with her “husband” and she answered, “My permanent address was with him.” When she was pressed about this response, she conceded that she did not live with him. She acknowledged having lied to immigration authorities about that. When asked if she lied on the sponsorship documents, she said that she believed that she had disclosed on the documents that they had married for immigration reasons, but that she did not remember exactly. I do not believe her evidence on that point. She entered into a fraudulent marriage to assist a person who had been denied refugee status. She misrepresented that this individual was living with her, when he was not. I am quite sure that she did not disclose this on the sponsorship documents themselves.

[59] This evidence is concerning. First of all, it is problematic that Ms. B would engage in this fraudulent activity and lie to the authorities. It does have some impact on her credibility, even though she may have been genuinely motivated by her concern for the refugee complainant involved. Secondly, Ms. B was less than frank in her testimony about this issue. She was evasive and, at times, untruthful. I would be less concerned if she had admitted the situation openly and expressed some regret about her dishonesty.

[60] That said, the fact that Ms. B was dishonest on a past occasion does not mean that she is lying about her interactions with Mr. K. On the contrary, I do not believe that she has deliberately fabricated a story to accuse him of sexual assault. I accept that she believes she was sexually assaulted. I am, however, somewhat cautious about accepting as true every detail of the evidence she presented in court. I am concerned that she considers it acceptable to lie about details provided her cause, in her opinion, is a just one.

[61] In her evidence about the arrangements for her Saturday night out with Mr. K, Ms. B was adamant that this was not a date and that she specifically told Mr. K that before they went out. This would be an unusual thing to say to somebody before going out on a Saturday night. Mr. K denies that she said anything of that nature. However, leaving that aside, the evening had all the hallmarks of a “date.”

• A co-worker was playing match-maker asking each of them if they were interested in the other.
• After this exchange, Mr. K asked Ms. B out for dinner.
• He picked her up at her apartment.
• They walked together to the pub she had selected.
• They were at the pub for approximately seven hours.
• He picked up the bill in its entirety.
• He walked her back to her apartment afterwards.
• During the evening, Ms. B shared intimate details about her personal life with Mr. K, including her cervical cancer, her inability to have children, and her fake marriage.

[62] Ms. B was evasive in her evidence as to her knowledge that it would just be the two of them going out for dinner on a Saturday night. She first said it was not clear that there would only be the two of them and that she did not assume that to be the case. That answer was inconsistent with her own testimony at the preliminary hearing. She was also evasive about whether Mr. K asked her out for dinner as opposed to saying something more casual about getting together sometime. Again, this was not fully consistent with her own evidence at the preliminary hearing. Likewise, she claimed at trial that she did not remember whether she had been the one to choose the restaurant. This is inconsistent with her evidence at the preliminary hearing when she said she had chosen the restaurant, as well as with the evidence of Mr. K. Some of these discrepancies may simply be because of a fading memory over time. However, there is an element of Ms. B refusing to concede anything that would suggest she was interested in dating Mr. K. I have difficulty accepting her evidence on these points as being fully credible.

Reliability

[63] The most significant obstacle to making a finding of criminal guilt on the evidence of Ms. B is the reliability of her evidence. I have concerns about her reliability in three respects:

1. Ms. B does not appear to have been an observant witness, particularly with respect to the details of that evening;

2. Ms. B was not an accurate historian about a number of important details;

3. There is a real risk that, given the complete absence of memory of any of the critical events, and the passage of time before any report was made, Ms. B may have unconsciously reconstructed some of the events in her mind and come to believe them as true.

[64] I will deal with these three concerns in the order in which I have listed them.

[65] Ms. B has a very poor memory of anything connected with that evening. This extends beyond matters that could have been affected by drugs or alcohol. For example, she could not remember who selected the location. Perhaps this is a matter of credibility, which is even more problematic. But even if it is a simple matter of memory, it is troubling. Ms. B could not remember what she had eaten. She could not remember where they sat. She could not remember whether there was a live band. She could not remember what kind of beer she ordered, even though it was a novelty item brought in because it was the Saturday before Hallowe’en. None of these details are necessarily important. However, they are all details that preceded the consumption of alcohol or any opportunity for the administration of a drug. If Ms. B’s memory is that poor, it could be the case that the details she has reported are not necessarily accurate.

[66] That brings me to my second point. Ms. B was shown to be an inaccurate historian in some particular aspects, including ones that are critical details in the case. She recalled only one text message to Mr. K and one response from him. Essentially she asked him what happened and he said he had to leave. She recalled nothing else. However, the cell phone records tell a very different story. She exchanged several text messages with Mr. K in which her tone was friendly, even encouraging. She said she was “hungover,” although she testified in court that she had none of the symptoms of a hangover. She attributed her hangover to alcohol consumption, a fact she also denied at trial. She reported having had a “really good time.” She expressed interest in seeing Mr. K again stating, “Next time 0% alcohol.” It may well be the case that at the time of these messages Ms. B had not yet pieced together the events in her mind that led her to the conclusion that she had been drugged. It may also be the case that if she had been drugged she was not back to normal on the Sunday morning and her memory was affected by that. The particularly troubling aspect is that Ms. B di